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on May 15, 2022
Read Time: 10 Minutes
In November 2021, the subject of migrants without UK visas attempting to cross the English Channel from France to the UK by boat – a matter seemingly never far from the news headlines – became a hot topic once again, when it emerged that some 1,185 people had made the journey in a single day.
This figure represented a new daily record, and got many people talking about what the UK and French governments were doing about the situation, as well as about the two countries’ broader handling of – and attitudes towards – migration.
When the fresh controversy flared up in early November, the BBC reported that comparatively milder weather making the crossing less risky was likely a factor in the new daily record.
It was reported on 12th November that four Border Force vessels had intercepted boats spotted off the coast, before escorting them into Dover, as a Whitehall source accused France of losing control of the situation. Three people were feared to be lost at sea, two kayaks having been found adrift near Calais, according to French authorities.
Then, in late November, came the most deeply tragic – but also all-too-sadly predictable – new development, as it was reported that 27 people had drowned in the deadliest Channel crossing on record. French interior minister Gérald Darmanin said that of those who drowned, 17 were men, and seven were women, one of whom was pregnant.
Five people were arrested in connection with the fatal crossing, as the UK Prime Minister’s official spokesperson stated: “It illustrates that we absolutely need to step up our work with our French counterparts to dismantle this horrific trade which preys on vulnerable people.”
According to statistics, 98% of people who arrive in the UK after crossing the Channel go on to apply for asylum. There were 35,737 applications for asylum in 2019, dropping to 29,815 in 2020. For the first half of 2021, the total number of applications was 14,670.
When news filtered through in early November of the new daily record for Channel crossings, a Home Office spokesperson described the number as “unacceptable”, as UK officials vowed to stop migrants attempting a journey they said was dangerous and unnecessary.
The spokesperson said: “The British public have had enough of seeing people die in the Channel while ruthless criminal gangs profit from their misery, and our New Plan for Immigration will fix the broken system which encourages migrants to make this lethal journey.”
Later that month, France confirmed an additional €11 million (£9.3 million) worth of equipment and 100 vehicles to combat smuggling along the coast. This kit included beach-ready quad bikes and zodiac boats, as well as more night-vision equipment for the teams attempting to spot would-be migrants hiding in sand dunes.
France said it was doing everything possible to prevent the crossings. However, Calais MP Pierre-Henri Dumont said to the BBC that it was unrealistic to expect police officers to patrol 200 to 300 kilometres (125 to 186 miles) of coastline for 24 hours a day, given that “it only takes five to 10 minutes to take a boat and fill it with migrants.”
Under international law, there is no need for people to seek asylum in the first safe country they reach; they have the right to claim asylum in any country they arrive in.
Although there is a European Union-wide law – known as Dublin III – that enables asylum seekers to be returned to the first EU member state they are proven to have entered, the UK ceased to be part of this arrangement when it left the EU.
Many migrants who do complete the crossing of the Channel claim asylum on their arrival in the UK, so that they can receive the refugee status that would entitle them to stay. In order to achieve this status, however, they are required to prove that they cannot return to their home country because they fear persecution on the basis of their nationality, race, religion, political opinion, sexual orientation, or gender identity.
The Home Secretary has repeatedly said in the past that she wants to render English Channel migrant crossings without a visa “unviable”. To this end, in July 2021, she brought forward a new Nationality and Borders Bill, which she has said will help tackle the increasing numbers of crossings.
As of 25th February 2022, the Bill had reached the report stage in the House of Lords. If it becomes law, it will increase prison sentences for people entering the UK illegally, in addition to – for the first time – considering whether someone arrived in the country legally or illegally when potentially granting them asylum.
In the meantime, activity by the UK Border Force within British waters is subject to current UK law, which in turn, is required to comply with international maritime law, as outlined by the United Nations (UN). The UN Conventions of the Law at Sea say that “every state” must “render assistance to any person found at sea in danger of being lost.” They are then required to “proceed with all possible speed to the rescue of persons in distress”.
The law does not explicitly set out, however, what should happen “once a rescue has been affected”. While the UN’s High Commissioner for Refugees (UNHCR) has said that the “definition of rescue implies disembarkation” on land, the lack of specific reference to this in international law may leave scope for boats to be legally turned around, provided that their safety on land can be guaranteed.
There has been much talk of the UK Government potentially using “pushback” tactics to, as the term suggests, force boats to turn around. Oxfam has said that the term “pushback” refers to “the practice by authorities of preventing people from seeking protection on their territory by forcibly returning them to another country.”
It has been reported that the Home Secretary is thought to have got the idea from recent visits to Greece and Australia, where such “pushback” policies are in force.
With regard to people attempting a crossing who may not have completed the journey, if the migrants are found in UK national waters, they will often be brought to a British port. If they are found in international waters, the UK authorities customarily work with their counterparts in France to decide where to take them. Each country has ‘search and rescue’ zones.
In 2004, the percentage of asylum applicants refused at initial decision reached its peak level of 88%. This percentage of applicants refused at initial decision fell to 59% in 2014, while the equivalent figure for 2019 was 48%.
In the period from 2004 to 2020, about three-quarters of those applying for asylum who were refused at initial decision submitted an appeal – and of those appeals, nearly a third were allowed.
There has been opposition to the idea of “pushback” policies from human rights groups, as well as from France. It has been suggested that according to maritime law, the individual Border Force boat captains who would reportedly be expected to decide whether to turn around a given boat, would only be allowed to do so if it is considered safe, and if they can be sure that the “pushback” won’t cause the vessel to capsize.
Meanwhile, human rights campaigners have said that “pushbacks” violate international law – specifically Article 14 of the UN Declaration of Human Rights, which states that everyone has the right to seek asylum from persecution.
Concerns about how effective such plans would be in reducing Channel crossings have also been heightened by the French repeatedly refusing to intercept or take back migrant boats. The French interior minister tweeted in September 2021 that his country “will not accept any practices that go against maritime laws, nor any financial blackmail.”
He continued: “The UK must keep to their commitments, which I said clearly to my counterpart Priti Patel. The friendship between our two countries deserves better than these actions that harm the cooperation of our services.”
Sky News reported that the advice the Home Office has taken on “pushbacks” was that such measures would only be legal if they were done safely. It would seem quite difficult to accomplish this in the case of smaller dinghies carrying larger numbers of people, with a source reportedly telling The Daily Telegraph that “pushbacks” would probably only be used for “sturdier, bigger migrant boats”, and only in “very limited circumstances”.
Given that the vast majority of the thousands of migrants who attempted the Channel crossing from France to the UK during 2021 reportedly arrived in small boats, it therefore seems that in practice, opportunities for the UK Government to use “pushbacks” while remaining compliant with the law will probably be very limited.
When controversy flared up over the migrant crossings in November 2021, the UK and France reached an agreement aimed at preventing “100% of Channel crossings”. A joint statement by the two countries said that authorities were determined to render the route “unviable” for migrants attempting the journey from France to the UK.
The joint statement by UK Home Secretary Priti Patel and the French interior minister Gérald Darmanin said they had “agreed to strengthen operational cooperation further. More must be done to stop the dangerous crossings. They agreed to accelerate the delivery of the commitments made in the joint agreement of July 2021 to deliver on their joint determination to prevent 100% of crossings and make this deadly route unviable.”
That same month, the Home Secretary said that she wanted the UK Border Force to have the ability to turn away migrant boats and send them back to France, amid reports that border officials had already begun training staff in “pushback tactics”. Sky News reported at the time that it understood the Home Office had taken legal advice that turning around some boats would be permitted under maritime law.
It was then further reported in January 2022 that Prime Minister Boris Johnson was looking to place the Royal Navy in charge of operations in the Channel to prevent migrants from arriving on UK shores. Enver Solomon, Chief Executive Officer of the UK-based Refugee Council charity, condemned these reported proposals as “cruel and inhumane”.
Multiple charities have spoken out against the UK Government’s proposed measures. The Refugee Council has said that people fleeing war and terror are forced to resort to extraordinary measures, and lack a choice as to how they seek safety.
The charity suggested that the plans set out for addressing the migrant crossings would create a two-tier system, with some refugees being punished unfairly on the basis of the methods they were able to use to reach the UK.
The British Red Cross expressed similar sentiments, stating that “nobody puts their life at risk unless they are absolutely desperate and feel they have no other options.” The body was backed up in this stance by Amnesty International, which said that migrants were attempting such perilous journeys “largely because there are no safe and legal routes open to them”.
Meanwhile, Alan Manning – Professor of Economics at the London School of Economics and Political Science – has said that “little” in the UK Government’s “New Plan for Immigration” is actually new, or “even much of a plan”. He also expressed scepticism over the sustainability of a “pushback” policy, instead suggesting: “The only way to substantially reduce the numbers crossing the Channel is through an agreement with France. That is the lesson from previous episodes of unauthorised sea crossings.”
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